Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, April 26, 2022

State of Ohio v. Austin M. Fuell, Case No. 2021-0794
Twelfth District Court of Appeals (Clermont County)

State of Ohio v. Richard M. Hough, Case No. 2021-0998
Tenth District Court of Appeals (Franklin County)

In re J.F. and J.A.F., Case No. 2021-1172
Fourth District Court of Appeals (Jackson County)

State of Ohio ex rel. Christopher Hicks v. Clermont County Board of Commissioners, Case No. 2021-0611
Twelfth District Court of Appeals (Clermont County)

Is Mandatory Sentence for Murder Unconstitutional for Juveniles?

State of Ohio v. Austin M. Fuell, Case No. 2021-0794
Twelfth District Court of Appeals (Clermont County)


  • When a juvenile court considers whether there is probable cause of a crime that would result in the mandatory transfer of the case to adult criminal court, does the juvenile have a constitutional right to cross-examine witnesses who make hearsay statements?
  • Is a mandatory sentence of 15 years to life for murder unconstitutional as applied to juvenile offenders because it doesn’t allow the court to consider youth when sentencing the offender?

The Miami Township Police Department filed a complaint with the Clermont County Juvenile Court in June 2019 against Austin Fuell. A witness stated that Fuell had set up a meeting with the witness’ boyfriend, Jordan Ketring, to illegally buy anti-anxiety prescription drugs. According to the witness, Ketring instead stole $375 from Fuell.

A few nights later, two individuals broke into the home of the witness’ grandparents, where Ketring and the witness were living. The armed intruders’ faces were covered. They demanded to know the location of a safe. The witness later said that while one intruder was in another room looking for the safe, the other asked, “Where is my $375?” – leading the witness to believe the intruder was Fuell. Ketring, who had a firearm, and the intruder began shooting at each other, and Ketring was shot. The two intruders fled with the safe. Ketring died from his injuries.

The police alleged to the juvenile court that Fuell, who was 17 at the time of the events, had committed acts that would be aggravated robbery, aggravated burglary, and felony murder if committed by an adult. The juvenile court held a hearing to determine whether there was probable cause that Fuell committed the crimes. Given Fuell’s age, the case was subject to a mandatory transfer, or “bindover,” to adult criminal court if probable cause was established.

Detective Testifies About Cellphone Data and Text Messages
At the hearing, the prosecutor presented information to indicate that Fuell was in the house where the crimes occurred. A police detective testified about a cell-tower report as well as text messages and missed calls between Fuell and a friend. The detective stated that he found Fuell’s cellphone number and contacted the carrier to obtain cell-tower location data, which was analyzed by the state’s crime lab. The detective testified that the crime lab report showed Fuell’s phone was in the area of the house where Ketring was at the time of the murder. The detective also testified about the text messages and missed calls, stating that Fuell texted his friend for the address of Ketring’s girlfriend about three hours before the robbery and murder.  

Fuell’s attorney objected to this evidence , arguing the detective’s testimony about the cellphone data and the phone messages were hearsay and the detective wasn’t the correct person to discuss the documents. The juvenile court disagreed, allowing the evidence to be admitted.

Youth’s Case Moves to Criminal Court
In October 2019, the juvenile court concluded that probable cause was shown, and Fuell was transferred for prosecution in adult criminal court. A grand jury indicted Fuell on aggravated murder, murder, and two other offenses. Fuell agreed to plead guilty to one count of murder if the prosecutor asked the court to dismiss the other charges and the firearm specifications. The court accepted the plea and sentenced Fuell to 15 years to life in prison.

Fuell appealed to the Twelfth District Court of Appeals, contending that the state’s case depended on the cellphone data report and the text messages, yet he wasn’t given the chance to confront and cross-examine the appropriate or qualified witnesses for this evidence. The Twelfth District rejected the argument that those rights exist at a juvenile court’s mandatory transfer hearing.

Fuell appealed to the Supreme Court of Ohio, which accepted the case.

Offender Argues Juveniles Must Be Permitted to Confront Witnesses at Transfer Hearing
Fuell argues that the constitutional right to due process embodies the minimum procedural protections the state must give those accused of a crime. Among them are the rights of confrontation and cross-examination, he states. These “bedrock protections” are “indispensable to fundamental fairness,” his brief argues. He rejects the prosecutor’s position that the rights are restricted to trials in criminal cases. A hearing is meaningful only if a person can confront and cross-examine witnesses, he maintains. In legal proceedings, such as juvenile transfer hearings, where important decisions rely on questions of fact, there must be the opportunity to confront and cross-examine witnesses, he asserts.

To discredit the claim that Fuell was at the location where Ketring was killed, it was critical to question the crime lab analyst who reviewed the cellphone data, Fuell argues. It also was essential to cross-examine his friend, who didn’t testify, about the text messages, he states.

The U.S. Supreme Court has ruled that transfer hearings in juvenile courts represent a critical stage in a legal proceeding that must meet due-process standards, Fuell notes. However, the Twelfth District maintained that juveniles don’t have the right to confront witnesses at these hearings because their “liberty is not yet at stake.” Fuell counters that a transfer to adult criminal court is of great significance to a juvenile, who may be sentenced to harsher penalties and, if released from prison, face the consequences that stem from a conviction.

State Contends Confrontation Rights Not Critical at Any Preliminary Hearing
The Clermont County Prosecutor’s Office argues that a transfer hearing in juvenile court to establish probable cause is less formal than a juvenile court’s adjudicatory hearing, where the outcome of a minor’s case is decided. The prosecutor maintains that U.S. Supreme Court precedent on this issue concluded that less formal court hearings offer juveniles fewer rights. The prosecutor contends that the use of hearsay evidence, such as the cell data report and the text messages, in a transfer hearing to determine whether probable cause exists doesn’t violate a youth’s constitutional rights. These rights apply only in trials, the prosecutor maintains.

The prosecutor compares juvenile court transfer hearings to grand jury proceedings, which determine probable cause in criminal court. Just like minors in a juvenile court transfer hearing, an adult who is the subject of a grand jury proceeding faces a significant potential penalty if indicted and subject to prosecution in criminal court, the prosecutor maintains. However, the prosecutor states, an adult doesn’t have the right to confront and cross-examine witnesses in the grand jury. Nor does an adult have these rights in any preliminary hearing in criminal court, the prosecutor adds.

At a mandatory transfer hearing, the evidence presented by the state to try to establish probable cause doesn’t have to be indisputable, and the court isn’t weighing competing theories from the state and the defense, the prosecutor asserts. The prosecutor concludes that allowing trial rights at this stage would take more time and strain the resources of the juvenile court system.

Offender Maintains That Youth Must Be Factor in Sentencing
Fuell also asserts that the Ohio’s mandatory sentence of 15 years to life is unconstitutional when applied to juveniles because a court cannot consider youth when deciding the appropriate sentence. The constitutional claim is based on the U.S. Constitution’s Eighth Amendment, which prohibits cruel and unusual punishment.

He points to the Supreme Court of Ohio’s decision in State v. Patrick (2020). The case concerned a juvenile sentenced to life for aggravated murder. The Court ruled that a trial court must articulate its consideration of the juvenile offender’s youth as a mitigating factor before imposing a life sentence for aggravated murder, even if the sentence allows for the possibility of parole.

Because Patrick examined a constitutional right, the ruling applies to any life sentence imposed on juveniles, Fuell argues, including his sentence for murder. Courts must consider youth as a mitigating factor for life sentences, even when parole is possible, he asserts. Because the sentence for murder is mandatory under an Ohio statute, youth cannot be considered, so the law is unconstitutional as applied to juveniles, he maintains.

State Responds That Parole Possibility Makes Murder Sentence Constitutional
The prosecutor counters that a life sentence with the possibility of parole gives a juvenile offender a meaningful opportunity to be released by demonstrating maturity and rehabilitation. Because parole is attainable, Ohio’s mandatory sentence of 15 years to life doesn’t violate the constitutional rights of juveniles, the prosecutor maintains. The office contends that a meaningful opportunity for release from prison is provided either through the trial court’s consideration of youth at sentencing or by having the chance for parole. The office also notes that the state parole board considers age-related factors when deciding whether to release a prisoner.

The prosecutor argues that Fuell places form above function in his arguments. The purpose of the Eighth Amendment is to make sure a penalty isn’t grossly disproportionate to a crime. The prosecutor contends that Fuell focuses on a trial court’s inability to consider youth when sentencing for murder, while dismissing whether 15 years to life is a grossly disproportionate sentence when a juvenile commits murder. Because a juvenile has a meaningful opportunity to get out of prison, the fact that the court has no other option when sentencing for murder doesn’t, on its own, make the sentence unconstitutional, the prosecutor concludes.

Prosecutors and Groups Representing Youth Submit Arguments
The Juvenile Law Center, Children’s Law Center, and the public defender’s offices in Cuyahoga, Franklin, Hamilton, and Montgomery counties filed a joint amicus curiae brief supporting Fuell’s arguments. The National Juvenile Defender Center submitted an amicus brief also backing Fuell.

The Ohio Prosecuting Attorneys Association submitted an amicus brief in support of the Clermont County prosecutor.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Austin M. Fuell from the Ohio Public Defender’s Office: Timothy Hackett, 614.644.1558

Representing the State of Ohio from the Clermont County Prosecutor’s Office: Nicholas Horton, 513.732.8175

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Was Hearing Required to Assess Defendant’s Competency for Trial?

State of Ohio v. Richard M. Hough, Case No. 2021-0998
Tenth District Court of Appeals (Franklin County)

ISSUE: Must a trial court conduct a hearing when a motion is made for a competency evaluation of a defendant?

Betty Griggs was driving to a restaurant in August 2017 with her adult daughter and two young granddaughters. A vehicle driven by Richard Hough was traveling the wrong way on a highway ramp and crashed into Griggs’ vehicle. Griggs was killed, and her daughter and granddaughters were seriously injured and hospitalized. Lab results showed Hough had cocaine and marijuana in his system.

Hough was indicted in November 2017. The charges were aggravated vehicular homicide, aggravated vehicular assault, vehicular assault, and operating a vehicle while intoxicated.

In April 2019, before his trial, Hough’s lawyer filed requests with the Franklin County Common Pleas Court for an assessment of Hough’s competence to stand trial and for a psychiatric evaluation of his mental health at the time of the accident. The motions cited R.C. 2945.37. They did not include additional documentation to support the requests. The court didn’t hold a hearing on either motion, and it denied the request for a psychiatric evaluation. According to the briefs, the court didn’t rule on the competency assessment.

In August 2019, the jury found Hough guilty of nearly all charges. The court permitted a psychiatric evaluation at this point to gather mitigating factors for sentencing. The report documented Hough’s history of schizophrenia, bipolar disorder, and depression. Over the years, he had been hospitalized for attempted suicide and other psychiatric episodes. A week before the car crash, he was found lying in the street saying that he was being chased, and he was taken to a hospital. His IQ was reported as in the extremely low range of intellectual functioning.

The court imposed a 15-year prison sentence. Hough appealed to the Tenth District Court of Appeals, raising three legal issues, including the trial court’s failure to hold a competency hearing. The appeals court rejected his claims.

Representing himself, Hough filed an appeal with the Supreme Court of Ohio regarding the lack of a competency hearing. The Supreme Court accepted his case.

Competency Hearing Must Be Held to Present Evidence, Offender Argues
R.C. 2945.37 states that the issue of a defendant’s competence to stand trial may be raised in a criminal case. According to the statute, “If the issue is raised before the trial has commenced,” as occurred in this case, “the court shall hold a hearing on the issue ….”

Hough notes that despite the mandatory “shall” language in the law, the Supreme Court of Ohio ruled in State v. Bock (1986) that a trial court’s failure to hold a mandatory competency hearing is harmless error if the record doesn’t convey sufficient indications of incompetency. However, Hough argues, the U.S. Supreme Court has made clear that a defendant’s constitutional right to a fair trial is deprived when a court doesn’t follow procedures that protect a defendant from being tried when incompetent to stand trial. Bock contradicts this safeguard and creates “an insurmountable standard” for defendants, Hough’s brief states.

Because the trial court didn’t hold a competency hearing before his trial, no record with evidence to demonstrate incompetency was made that could be reviewed on appeal, Hough’s brief contends. 

Offender Didn’t Display Signs of Incompetence, State Asserts
In response to the motions for evaluations, the trial judge said he was “incredulous” about requests in 2019 to assess Hough’s mental health at the time of the 2017 crash. The Franklin County Prosecutor’s Office and Hough agree that the trial judge believed both of Hough’s requests were to determine his mental condition at the time of the car crash. The judge never addressed the motion about Hough’s competency to stand trial in 2019. Regardless, the prosecutor emphasizes that neither motion included facts to support either a psychiatric evaluation or a competency assessment.

The prosecutor points out that R.C. 2945.37 also explains a defendant isn’t incompetent to stand trial simply because the person has mental illnesses or has been prescribed medication. According to the statute, a defendant is presumed to be competent to stand trial, unless the court finds the defendant can’t understand the nature and objective of the court proceedings or cannot assist in the defense.

Hough didn’t have any outbursts in court, nor did he indicate any problems working with his lawyers, the prosecutor maintains. The office adds that Hough also was out on bond without incident during the nearly two years between his indictment and trial, and he appeared, and was cooperative, at all hearings. The office concludes that Bock resolves this case because the record doesn’t reveal signs that Hough was incompetent to stand trial.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Richard M. Hough from the Ohio Public Defender’s Office: Victoria Bader, 614.466.5394

Representing the State of Ohio from the Franklin County Prosecutor’s Office: Sheryl Prichard, 614.525.3555

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Must Attorney Be Appointed When Child’s Best Interests Are in Dispute?

In re J.F. and J.A.F., Case No. 2021-1172
Fourth District Court of Appeals (Jackson County)

ISSUE: In a juvenile court proceeding to terminate parental rights, is a child entitled to independent attorney representation when there is evidence the child’s wishes differ from a guardian ad litem’s recommendation of the child’s best interests?

A woman identified in court records as “L.A.” is the mother of two children, identified at “J.F.” and “J.A.F.”  In March 2018, when J.F. was a newborn infant and J.A.F. was 4 years old, the Jackson County Department of Job and Family Services sought the emergency removal of the two children from L.A.’s home. The Jackson County Juvenile Court appointed Jennifer Graham as a guardian ad litem to represent the children.

At a hearing, the children services agency alleged the children were abused, neglected, and dependent children, noting J.F. tested positive for drugs at birth. L.A. and the children’s father didn’t object, and the court ordered emergency removal with supervised visitation for the parents permitted.

Within weeks, the agency and the parents reached a settlement returning the children to the parents, along with protective supervision from the agency. By December 2018, the father was imprisoned for drug-related crimes, and L.A. tested positive for illegal drug use. L.A. admitted to being a methamphetamine user, but denied it impacted her ability to parent her children. The agency sought temporary custody of the children, and the two were placed together in a foster home.

In August 2020, the agency sought permanent custody of the children. Graham supported the agency’s request. At the time of a January 2021 hearing, J.F. was 2 years old and J.A.F. was 7. J.F. suffered from a rare medical syndrome, which required around the clock supervision, and had a cleft palate. Graham said she could not know his wishes because of his age and inability to communicate.

Graham testified that J.A.F. “has never come right out and said to me that he wants to be with his parents,” but did express how much he loved his mother and questioned when he would be able to go home. She said J.A.F. believes at some point he is going to return home, even though she suggested he wasn’t old enough to fully understand his mother’s circumstances.

Witnesses at the hearing explained L.A. continued to test positive for drugs, had been evicted from her home, and moved into a camper with a friend. Graham testified she believed L.A. was unable to care for J.F. as he was a special needs child, and both children needed more permanency than living in a camper, which may not have had an operable indoor toilet.

The juvenile court granted permanent custody to the agency, and L.A. appealed the decision to the Fourth District Court of Appeals. L.A. argued that under the Supreme Court’s 2004 In re Williams decision, an independent attorney should have been appointed to represent J.A.F. at the juvenile court hearing because his wishes differed from the recommendation of the guardian ad litem’s. The Fourth District affirmed the juvenile court’s decision.

L.A. appealed to the Supreme Court of Ohio, which agreed to hear the case.

Circumstances Require Lawyer to Assist Child, Mother Argues
The parties dispute the Fourth District’s interpretation of Williams. In Williams, the Supreme Court stated that in “certain circumstances” during proceedings to terminate parental rights, a juvenile is entitled to an attorney separate from a guardian ad litem. While the Supreme Court did not define what constitutes “certain circumstances,” L.A. maintains state law and court rules support the appointment of an independent attorney to represent J.A.F. and ascertain his true wishes.

The mother notes R.C. 2151.32 states that in juvenile court proceedings, if “the interests of two or more such parties conflict, separate counsel shall be provided for each of them.” Similarly, Rule 48.02(D) of the Rules of Superintendence for the Courts of Ohio state that a court shall appoint a separate attorney to represent a child in certain juvenile court proceedings “in which the wishes of the child differ from the recommendations of the guardian ad litem.”

Citing Williams, the Fourth District ruled a child has a right to independent counsel when the child “consistently and repeatedly expresses a strong desire that differs and is otherwise inconsistent with the guardian ad litem’s recommendations.” L.A. counters the state law and court rule don’t indicate the child must demonstrate a “strong,” “repeated,” or “consistent” desire. The guardian ad litem, Graham, testified that J.A.F. expressed his interest in being reunited with his mother and a belief he would be returning to her, L.A. notes. Those statements were inconsistent with Graham’s recommendation to terminate the parents’ rights so J.A.F. could be adopted, L.A. asserts. That conflict was sufficient for the court to appoint a separate attorney to represent J.A.F. to determine if the boy wanted to return to his mother before the juvenile court granted the county custody, she concludes.

Different Views Don’t Necessitate Separate Lawyers, Agency Asserts
The Jackson County Prosecutor’s Office maintains the Williams decision doesn’t trigger the appointment of a separate attorney when there is “any evidence” of a conflict between the guardian ad litem and the child’s views. Rather, the Williams ruling gives trial court judges the ability to analyze on a case-by-case basis the child’s maturity and the expression of that child’s wishes. If the court determines a conflict exists between the guardian ad litem and the child, then an independent lawyer must be appointed, the prosecutor notes. L.A. is seeking a flat mandate that a lawyer be appointed any time a child expresses an interest that contrasts with the guardian ad litem, which would be an unworkable process, the prosecutor asserts.

The juvenile court was charged with determining the best interests of J.A.F. as part of the permanent custody matter, and considering the child’s interest is one factor, the prosecutor explains. The prosecutor argues that at his young age, J.A.F. wasn’t mature enough to comprehend the extent of his mother’s issues and the implications of him choosing to live with her. Graham reported the brothers are extremely close, and both she and the county agency advocated the two be adopted by the same family so they would not be split up. Because J.F.’s medical needs were too overwhelming for L.A., the children services agency was granted custody of the younger sibling. J.A.F. was unable to comprehend that his choosing to live with his mother meant he was no longer going to live with his brother, the prosecutor notes. Further, J.A.F. knew his mother “messed up,” but didn’t know about his mother’s drug issue and that living in a camper, which may not have had a working toilet, is an unacceptable living arrangement, the prosecutor notes.

The prosecutor concludes J.A.F. didn’t have the maturity to make the decision to live with his mother. The appointment of a separate lawyer wouldn’t provide the trial court with any information that would conflict with Graham’s recommendation the termination of parental rights was in J.A.F.’s best interest, the office asserts.

Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting L.A.’s position has been submitted by the organization Gen Justice. Another amicus brief supporting L.A. was jointly filed by the following organizations:

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing L.A.: Mark Miller, 614.227.0002

Representing Jackson County Job and Family Services from the Jackson County Prosecutor’s Office: Justin Lovett, 740.286.5006

Representing the Ohio Attorney General’s Office: Samuel Peterson, 614.466.8980

These informal previews are prepared by the Supreme Court’s Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews aren’t part of the case record, and aren’t considered by the Court during its deliberations.

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Must a Public Body Provide Proof Confirming Reasons for Closed-Door Meetings?

State of Ohio ex rel. Christopher Hicks v. Clermont County Board of Commissioners, Case No. 2021-0611
Twelfth District Court of Appeals (Clermont County)


  • When a public body goes into executive session, must the public body present proof that its conversations were consistent with the reason for entering executive session?
  • If a public body reasonably believes it lawfully entered into executive session, is a person who successfully demonstrates a violation of the Open Meetings Act entitled to reasonable attorney fees?

In January 2018, Christopher Hicks, a Clermont County resident, filed a complaint against the Clermont County Board of Commissioners, alleging multiple violations of the Ohio Open Meetings Act (OMA). Hicks claimed that at meetings between February and December 2017, the commissioners repeatedly entered into executive session under R.C. 121.22(G) and couldn’t prove the discussions that took place were related to the reasons for closing those portions of the meeting to the public.

Hicks stated he had no knowledge of what transpired in the closed sessions, but argued the commissioners couldn’t prove the sessions were lawful. The Clermont County Common Pleas Court ruled the commissioners properly voted to enter into executive session for purposes allowed by the OMA. However, the trial court placed the burden on the commissioners to demonstrate that what was discussed in the private sessions aligned with the reasons for going into the closed meetings.

At a trial court hearing in late 2019, the county commissioners testified that formal notes weren’t taken in executive sessions and the request to go into executive session came from the county administrator. Neither the county administrator nor his staff could recall the exact nature of the personnel discussions that were cited for going into executive session. Noting most of the meetings in question took place more than two years earlier, the commissioners recalled little detail of what personnel matters were discussed or if any potential litigation was on the agenda.

The trial court ruled the commissioners violated the OMA. The OMA allows a person who brings a successful OMA violation claim to recoup attorney fees. Hicks sought more than $82,000 in attorney fees and costs. The trial court awarded him about $79,700.

The county commissioners appealed the decision to the Twelfth District Court of Appeals. In a split decision, the Twelfth District affirmed the trial court’s decision.

The county commissioners appealed to the Supreme Court of Ohio, which agreed to hear the case.

Burden on Citizen to Prove Violation, County Asserts
The county commissioners contend the lower courts wrongly flipped the burden of proof of a violation to the county, when the OMA requires the party making the complaint to prove a violation. The commissioners claim the appeals court’s decision forces a public employer to forfeit the confidentiality of its employees by having to publicly state the nature of the personnel matter it intends to discuss in private.

The commissioners invoked R.C. 121.22(G)(1) by listing all the reasons they went into executive session, which included appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee. The commissioners stated the county administrator often discussed more than one employee during the executive sessions and more than one of types of personnel actions on the list.

The commissioners argue Hicks has no proof they didn’t discuss those matters in the private sessions, and the law doesn’t require them to state which specific type of personnel decision they would be discussing. Once the commissioners properly invoked the right to enter into executive session, the burden switched back to Hicks to prove the deliberations violated the act. Because Hicks offered no evidence the commissioners privately discussed matters that were impermissible under the OMA, the trial court wrongly concluded they violated the act, the commissioners conclude.

Under R.C. 121.22(I)(2)(a), the trial court could deny attorney fees if the commissioners both “reasonably would believe” they weren’t violating the law and their conduct “would serve the public policy” that permitted them to enter into executive session. The commissioners argue they reasonably believed the law permitted the session and the public policy decision to protect the confidentiality of public employees when discussing personnel matters was justified. Because of this reasonable belief, the trial court should have denied Hick’s attorney fee request, the commissioners conclude.

Act Requires Justification for Private Meetings, Resident Argues
The OMA presumes transparency and public meetings are to be conducted in public with only narrow exceptions, Hicks maintains. Because the commissioners are invoking an exception to the rule that  the meetings are to be held in public, the burden of proof to close the session rests with the commission, Hicks argues.

Hicks reports that at the hearing, one commissioner recalled taking notes at the meetings and could recall discussions about one employee. The commissioner acknowledged that while he read the full list of reasons for closing the session, it wouldn’t have been likely the commissioners would have discussed both promoting and demoting the worker. The commissioner also recalls taking notes regarding the locations of hotels at a time when the county was discussing modification to its local lodging tax. While Hicks didn’t have the burden to prove the commissioners actually met for the reasons they asserted, he argues the record indicates the meetings weren’t for the purported purposes.

Hicks argues the commissioners fail to acknowledge that two elements of the law need to be met to go into executive session. The commissioners have to cite the reasons under R.C. 121.22(G)(1) that explain why they are going into executive session, and they have to demonstrate they met only for those purposes.

Hicks contends this doesn’t mean the public body has to keep extensive minutes of what transpires in the meetings, and it doesn’t have to compromise the confidentiality of the employees who are the topics of the conversations. However, the government body does have to record some information related to the closed-door session discussions, Hicks asserts. He notes the commissioners have options available to keep the information discussed private. For example, they could seek a protection order from a court that would protect the public release of the details of the sessions, he concludes.

Regarding the attorney fees, Hicks argues the Supreme Court has established that public bodies must cite specific employment matters to enter into executive session, and it wasn’t reasonable for the commissioners to believe they were following the law. Because the trial court ruled the commissioners didn’t prove their belief was reasonable, the fee award should be upheld, Hicks asserts.

Government Advocates Support Commissioners
An amicus curiae brief supporting the commissioners was jointly submitted by the Buckeye Association of School Administrators, Coalition of Large Ohio Urban Townships, County Commissioners Association of Ohio, Ohio Association of School Business Officials, Ohio Municipal League, Ohio School Boards Association, and Ohio Township Association. The Court granted the coalition of government groups’ request to share oral argument time with the county commission.

Additional Friend-of-Court Briefs Submitted
An amicus brief supporting the commissioners was also filed by the Ohio Attorney General’s Office. The Ohio Coalition for Open Government submitted an amicus brief supporting Hicks.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Clermont County Board of Commissioners: Mark Landes, 614.221.2121

Representing Christopher Hicks: Matthew Miller-Novak, 513.991.6430

Representing the Ohio Municipal League et al.: Phillip Hartmann, 614.464.1211

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